Question:
We are charged for any and all ticket mistakes: unused butters, extra napkins on tables, food tickets left in window or food taken out of window without a ticket and not separating utensils. Is this legal?
– Madeline, Server, Pioneer
Answer:
I’ve gotten this question a few times over the years, so it seems time to revisit. It is not an uncommon practice to charge servers for their mistakes—but that doesn’t mean it’s legal. Or that a mistake is a mistake. The answer, frustratingly, is it depends on the state and the exact nature of the problem.
Waste in the form of extra napkins, butter, and so on are part of the cost of doing business, as are most server errors. The law is pretty clear on this in many places. For example, the minimum wage law for restaurants in New York states, “examples of prohibited [payroll] deductions are: (1) deductions for spoilage or breakage; (2) deductions for cash shortages or losses; (3) fines or penalties for lateness, misconduct, or quitting by an employee without notice.”
Where it gets more interesting is in the case of mistakes like a dine-and-dash or extra order placed with the kitchen that is not picked up—and then eaten by the server. In cases of “negligence, dishonesty, or willfulness,” employers can typically garnish wages as long as they do not drop below minimum wage. But employers need a strong case and some evidence in order to do so. The examples you’re describing do not seem to meet that standard.
Determining whether a mistake like a cash shortage is a slipup or negligence is where things get messy. In general, the best approach is not to charge servers for their mistakes. Michael Traud, who teaches hospitality law at Drexel University’s Center for Hospitality and Sport Management says, “’Reasonableness’ is one of the elements of negligence which is judged on a case-by-case basis. What may be reasonable for one server may not be for another based on experience, skill, etc. A case-by-case determination can be ruled many different ways by a judge or jury. Is the price of a lawsuit worth the cost of a discarded utensil?”
Apart from the legal side, there is also a policy consideration to consider: what is the impact on employee recruitment, retention or—on the flip side—accountability, when you charge employees for mistakes?
Because of the complexity and variance, your best bet is to consult with a labor attorney in your region to see if you are in the right or if your employer is acting within the law. Operators should have their policy vetted by their hospitality attorney. In all, though, the best approach is to train well to control costs rather than assigning those costs to employees.
More on charging employees for mistakes here.